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According to Dollar General’s recent SEC filings, the company is likely to be sued  by the Equal Employment Opportunity Commission (EEOC) for their employee criminal background check practices.

I wasn’t able to find much information on this, but the Nashville Business Journal reported that EEOC alleges that the company’s criminal background check policy has a …

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If you’re a regular here in the EmployeeScreenIQ lounge, you know we’ve been closely following the EEOC case against Freeman Companies (filed in 2009) which alleges that their practice of denying employment based on one criminal charge or conviction and, or credit history is discriminatory.

In the latest development, Freeman asked the court to compel EEOC to produce their guidelines on how they use criminal background checks and credit reports as part of the employee background check process.  This was a similar request to the one made in the EEOC v. Kaplan Hire Education Corporation case.  EEOC argued that their policies and practices were irrelevant to the case and that the request was overly burdensome to the agency.

And just as another district court ruled in favor of the Kaplan request in May, they too ruled in favor of Freeman Companies.

According to Bloomberg BNA,  “Denying EEOC’s motion for a protective order, the court said defendant Freeman, a corporate events planner—also known as TFC Holding Co.—that EEOC alleges has engaged in a “pattern or practice” of discrimination against black, Hispanic, and male job applicants, may compel EEOC officials to testify about the agency’s own practices regarding use of criminal background checks or credit histories in hiring for government jobs.

EEOC argued that despite the broad discovery permitted under the Federal Rules of Civil Procedure, a protective order is appropriate because the proposed deposition would not seek information relevant to any claim or defense advanced by Freeman.

But U.S. Magistrate Judge Charles B. Day found that the deposition could produce information relevant to Freeman’s defense that its consideration of applicants’ criminal backgrounds and credit histories is job-related and consistent with business necessity.

‘[I]f [EEOC] uses hiring practices similar to those used by [Freeman], this fact may show the appropriateness of those practices, particularly because [EEOC] is the agency fighting unfair hiring practices,’ Day wrote.

The discovery conducted so far indicates that EEOC and Freeman “consider similar factors” in evaluating job applicants with criminal backgrounds, including the nature of the criminal offense, the seriousness of the conduct, and the particular job to be filled, the court added.

‘[EEOC]‘s practices therefore are reasonably calculated to lead to the discovery of admissible evidence, even if those practices eventually may not be admissible at trial or ultimately dispositive to showing whether [Freeman] violated the law,’ the court said. ‘Further, [Freeman] is not required to accept [EEOC]‘s position in its briefs that the two entities’ practices are dissimilar—[Freeman] is entitled to discovery on this issue as it relates to [Freeman]‘s defense.’”

It seems to me that EEOC is being hypocritical in not readily sharing their pre-employment background screening policies.  After all, if their policies allow for the same hiring practices as Freeman employs, how can they make the argument for discriminatory practices?  I made the same argument this past Spring when EEOC published their new employment background check guidelines but exempted the federal government from compliance.

Here’s the thing: I wouldn’t blame EEOC for maintaining strict background screening guidelines.  They have to protect themselves from those who pose a threat to their mission.  However, I’d make the same argument for all employers.

Here’s a copy of the ruling.

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Here’s a question for you: What would you do with an applicant who has a 37 year old open warrant for first degree murder? It sounds far-fetched, I know. But trust me, I didn’t make this up.  Meet Bobby Coley, 63, of Southeast Washington D.C.  Last week the Montgomery County, Virginia sheriff’s department confirmed the results of a commercial background check that uncovered the open warrant.

Coley was applying for a temporary position, which prompted the background check.  The background investigation turned up the warrant, and the temp agency instructed Coley to go to the Sheriff’s department to clear it up.  Without any further prompting, Coley voluntarily went to the sheriff’s office to take care of the open case, and was told it was for a first degree murder charge dating back to 1975.  “We weren’t finding anything, and so we finally looked in judicial case search and we actually saw that a warrant popped up under that name, Bobby Coley, and it said, ‘first-degree murder,’” Montgomery County Sheriff Darren Popkin said.

News agencies have reported the specifics of the 1975 case, ripped straight from an episode of Cold Case. The victim, Leopold Lynwood Chromak, disappeared on July 26, 1975. Two days later his wife contacted police and reported him missing. According to MSNBC, in 1984, a detective learned that the missing person case was actually a murder-for-hire, and that Chromak’s wife, Frances, had hired three men — Griffin, Smitty and Bobby Coley — to kill her husband. According to police documents, the woman said her husband was abusive and had beaten her. The three men allegedly smothered Chromak at Winexburg Manor Apartments in Silver Spring, Md., wrapped his body in a rug or carpet, took it to a van and dumped it along Central Avenue. His body was never found.

Coley was originally held by authorities, but ultimately released last week based on the lack of evidence.  Montgomery County has re-opened the investigation, but investigators will need to start from scratch. Mrs. Chromak has changed her name and disappeared, and the original anonymous informants are also long gone.

So back to Mr. Coley, and what to do about that open warrant.  Does a 37 year old, first degree murder conviction make Mr. Coley, who happens to be a member of a protected class, unemployable? I thought it would be interesting to apply the new EEOC guidance to this real life example.  While I don’t have all of the facts, just bear with me.  This is for illustration purposes only.  So here it goes:

For reasons we covered in last month’s BTW, the EEOC presumes that the use of any criminal history is potentially discriminatory, so the burden shifts immediately to an employer to defend the use of the information in their hiring process.  So the first step in using any criminal history information in an employment decision is to demonstrate job relatedness consistent with business necessity.  There are essentially two ways outlined in the guidance to do this. The first is with a validation study, which is, for all practical purposes, non-existent.  So we will go with the second method: conduct a targeted screen with a very tight nexus to the position, and a) apply the Green factors (nature of offense, time elapsed and nature of job).  For good measure,  b) conduct an individualized assessment, which, while not mandated by Title VII, is strongly advised.
The 63-year-old Coley has been in and out of federal custody on various charges since 1968. In fact, he was in the D.C. jail when the arrest warrant was filed in 1984. He wasn’t detained afterward and apparently never knew of the warrant. Applying the Green factors, let’s look at the nature of offense, time elapsed and nature of job.  We don’t know much about the nature of the job, other than it is temporary work.  Let’s assume it is an hourly position that does not involve public interaction, or exposure to children or the elderly, or any people, for that matter. So looking next at time elapsed, a significant amount of time has passed since the issuance of the warrant. 37 years is a long time. And recidivism studies show that the risk of a repeat offense reduces with the amount of time lapsed. So far, so good, for Mr. Coley.

Looking at the nature of the offense, we have a few issues to discuss. First of all, the offense we are looking at is an open warrant—not a conviction.  The guidance is pretty clear that arrests are not definitive, people are innocent until proven guilty, and certainly in this case, there is no evidence available due to the age of the case.  But it is an open case.  And the charge is First Degree Murder. It doesn’t get much more serious than that.

So in the spirit of the new guidance, we move on to the individualized assessment.  One next step would be to question Mr. Coley about the underlying facts surrounding the warrant. Let’s assume he denies everything. Do you believe him? The guidance allows for employers to make a decision based on the credibility of the candidate and the responses concerning the underlying conduct of the offense.  What about the other string of convictions alluded to above—the various charges since 1968, and the jail time served in 1984? Again, giving Mr. Coley the benefit of the doubt, if he last served time in 1984, 28 years ago, he was 35 years old.  And the studies show that the older an individual is at the conclusion of their last sentence, the less likely they are to re-offend. Has he completed any rehabilitation? Has he been successfully employed since his release?  Perhaps he has some character references that can vouch for him.

Do you hire Mr. Coley? Admittedly, I have played around with the facts here, but in most scenarios given the assumptions I have made here, the EEOC would say hire this fellow. Do you agree?

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It’s been a little over a month since the EEOC introduced new guidelines on the use of criminal records for employers and so far the general reaction we are hearing from the marketplace is confusion.  Some examples:

  • Do I need to remove the question that asks if the applicant has been convicted of a crime?
  • What is an individual assessment?
  • What kind of process and paperwork is this now going to require?

Well, we still don’t have any substantive answers, but we are keeping our ears and eyes open for interesting opinions on the subject.

Check out this essay written by Hans von Spakovsky of  The Heritage Foundation entitled, “The Dangerous Impact of Barring Criminal Background Checks: Congress Needs to Overrule the EEOC’s New Employment “Guidelines”.

Now, I’ll preface this by saying that the Heritage Foundation is definitely a conservative think tank and that I considered not posting this for that fact (that and Rush Limbaugh is on their home page).  However, this essay is being picked up by a number of media outlets throughout the country.  So, I’ll leave it up to you to determine if this is politically motivated or a genuine attempt to highlight a counter argument to the EEOC’s position (or both).

The author is a former counsel to the assistant attorney general for Civil Rights and the Department of Justice.  And his contention that the EEOC’s goal to eradicate a disparate impact on minorities in this regard could actually lead to overt discrimination is eerily similar to the warning issued by U.S. Civil Rights Commissioner, Peter Kirsanow.

I’m posting the abstract from the essay below.

Abstract: The EEOC’s new criminal background check “Enforcement Guidance” is potentially unlawful and certainly ill advised. In addition to lowering minority hiring rates and exposing employers to crushing liability, this new Guidance places employers in a vicious “Catch 22” situation: Business owners will have to choose between conducting criminal background checks and risking liability for supposedly violating Title VII or following the EEOC’s Guidance, abandoning background checks, and risking liability for criminal conduct by employees. Furthermore, failing to conduct such background checks places the public at risk, as violent offenders might go for years before lashing out at customers or co-workers. The U.S. House of Representatives and the Senate have already taken some actions to stop enforcement of this Guidance, but more is needed.

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We have received information through Jackson Lewis attorney, Garen Dodge that Elizabeth Grossman, the lead trial attorney in the New York office of the EEOC recently spoke about the agency’s new guidance on criminal background checks and said that the question on the application—”have you been convicted . . .”—even with all the non disqualifying language is going to be viewed by the agency as a red flag.

Garen mentioned that “the term “Banning the box” is the EEOC’s “best practice” buried in the guidance and not even called a best practice in the recommendations section of the guidance.  Here the NY EEOC has announced that “have you been convicted…” language on an application will be a “red flag” triggering further EEOC inquiry.  Not even state and local legislation on “banning the box” has gone this far.  Employers are asking if they have to delete this question from their applications”.

And unfortunately, we don’t have the answer.  We know that neither a mandate nor best practice recommendation were included in the guidance, so it looks as if  the New York EEO intends to enforce something that shouldn’t be enforced. This is very troubling for employers that are doing their best to comply with the guidance as written.

You would hope that would temper their plans and that employers could disregard, but as we all know, even if you win in court it can cost you a lot of time and money to defend yourself.

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In an interesting twist, late last week the Consumer Financial Protection Bureau (CFPB) announced the selection of former EEOC Commissioner Stuart Ishimaru to head a newly formed department, the Office of Minority and Women Inclusion (OMWI). The newly formed office is required by the Dodd-Frank Act to develop standards to promote diversity at both the CFPB and the entities it regulates. The specific charge of the office, by statute, is to develop standards for:
•    Equal employment opportunity and the racial, ethnic and gender diversity of the workforce and senior management of the agency;
•    Increased participation of minority-owned and women-owned businesses in the CFPB’s programs and contracts; and
•    Assessing the diversity policies and practices of the CFPB’s regulated entities.

Ishimaru’s appointment is of interest to many of us who have been tracking the EEOC’s recent actions to quickly pass several new and somewhat controversial initiatives.  It’s likely that the EEOC was acting quickly to bring those initiatives to a vote prior to Ishimaru’s departure, at a time when a 3-2 favorable vote would be most likely.  The most recent meeting held April 25 included passage of new guidance on the use of criminal history in employment decisions by a 4-1 margin, but was passed without hearing, prior public disclosure or comment period, unleashing strong criticism from the Wall Street Journal and the US Chamber of Commerce among others.

Ishimaru’s prior stints include serving in senior positions in the Civil Rights Division at the Department of Justice, and the Commission on Civil Rights. President George W. Bush nominated Mr. Ishimaru to the EEOC in 2003. President Barack Obama named Mr. Ishimaru Acting Chairman of the Commission in January 2009 – a role he held until April 2010. A press release was issued April 30th, 2012, announcing Ishimaru’s appointment.

If you are one of the many entities under the supervision and/or enforcement authority of the CFPB, get ready for a new era of oversight—not only with the mechanics and supervision of consumer transactions, but also in assessing diversity policies and practices. While the full scope of Ishimaru’s new post is not clear, we do know that the Bureau has very broad rulemaking and enforcement authority, and we are standing by for more specifics on Ishimaru’s plan and priorities going forward. If the past is any indication, we will see an aggressive agenda from this new office.

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Now that we have had a chance to pour over all 52 pages including every end note and reference, we have compiled the ultimate summary of the new EEOC guidance on the use of criminal history in a nutshell, along with our own take on what it all means. In this instance, a nutshell turned out to be three pages long. It is not exhaustive, reasonable people can (and will) debate the interpretation of what it all means, and this is certainly not legal advice. But here it is, and we welcome your continued comments and questions. For those of you who missed the webinar we held last week on this topic you can download it here.

The EEOC has long maintained that the use of credit and criminal history in hiring can lead to “disparate impact” discrimination.  Disparate impact claims rely on statistical information to prove that use of criminal history and credit information has an unintended discriminatory effect on a protected class—in this case, African Americans and Hispanics. New criminal history guidance, published April 25, 2012, supports the Commission’s commitment to put an end to systemic discrimination and its E-RACE initiative, Eradicating Racism and Colorism in Employment.  In the past year, the EEOC has filed a record number of class action lawsuits alleging that employer’s use of criminal history information amounts to discrimination, and Pepsi recently paid a very well publicized $3.13 million to settle a class action suit brought by the EEOC.
Technically speaking, the EEOC guidance is not binding on courts and carries no “official” legal weight. The EEOC does not have the authority to create statutes or issue non-procedural regulations under Title VII, unlike Congress.  In addition, because the EEOC did not allow for public comment prior to publication of the current guidance, it may be vulnerable to challenges in court.  In practice, however, courts rely heavily on agency policy statements and the EEOC guidance in particular.  Failure to heed the guidance may land you in Federal Court defending a class action claim. What follows is a summary of the Guidance, best practices, and some practical considerations for going forward.

The New Guidance
The new guidance supersedes the old policy statements issued by the EEOC in 1987 and 1990 on conviction and arrest records.  Job relatedness and business necessity remain the legal standard for an employer’s defense. The two times when this standard is met are defined:
1.    Validation Studies: “The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures”;
2.    Targeted Screening with Individualized Assessments: “The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, the nature of the job (the
Green factors). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”
•    The nature and gravity of the offense or offenses;
•    The time that has passed since the conviction and/or completion of the sentence; and
•    The nature of the job held or sought
•    Individualized Assessment
Since validation studies are extremely difficult and expensive and the social science to support them is not well-evolved, the Guidance concedes that a targeted screening is the more likely option for the vast majority of employers who rely on a criminal background check.

Invidualized Assessment
As explained in the Guidance:  “Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.”
“The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate.”
Factors to consider for Individualized Assessment:
1.    Facts or circumstances surrounding the offense or conduct
2.    The number of offenses for which the individual was convicted
3.    Older age at the time of conviction, or release from prison
4.    Evidence that the individual performed the same type of work post-conviction, with the same or a different employer, with no known incidents of criminal conduct
5.    The length and consistency of employment history before and after the offense or conduct
6.    Rehabilitation efforts (e.g., education/training)
7.    Employment or character references and any other information regarding fitness for the particular position
8.    Whether the individual is bonded under a federal, state, or local bonding program

Best Practices identified in the Guidance:
•    Do not ask for criminal information on applications. Inquiries about convictions, if made, should be narrowly tailored and limited only to those that are job-related.
•    Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
•    The policy should identify essential job requirements and the actual circumstances under which the jobs are performed.
•    The policy should also determine the specific offenses that may demonstrate unfitness for performing such jobs, and the duration of exclusions for criminal conduct.
•    Record the justification for the policy, procedures, and exclusions, including a record of consultations and research considered in crafting the policy and procedures.
•    Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.

Practical Implications for Employers
•    Eliminate policies that exclude applicants with any criminal record.
•    Review your paper job applications and pre-hire documents.  If you are using an ATS or web based applicant entry system, consider removing any inquires about criminal history from the application.
•    Limit inquiries about criminal convictions to those which are job related.
•    While individual assessment is not required by Title VII, the guidance implies that without it, you will have a more difficult defense. No examples are given of a scenario where an employer is successful without individualized assessment.
•    If an individual does not respond to an employer’s request for additional information, the employer can make a final decision without the additional information.  How long or under what circumstances an employer must wait is not clear.
•    If you use a third party CRA to conduct criminal screenings, review your packages and their reporting policies to ensure compliance.
•    If you use a third party CRA to adjudicate criminal results, consider building in a review process to comply with the individualized assessment recommendations.
•    Consider FCRA adverse action procedures and ways to incorporate the request for additional information needed for individualized assessments.
•    Note that simply having a reputation for discouraging applicants based on race may invite investigation by the EEOC.
•    Large applicant pools have greater potential for disparate impact, so big employers with high turnover should seek counsel in determining the best means of compliance.
•    Compliance with a Federal law/mandate that conflicts with the Guidance is a defense.
•    State and local mandates are NOT a defense.  They are pre-empted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII.

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Screenshot of webinar

As you might know, we held a webinar last Friday about the new EEOC guidance on criminal records for employers.  We are now making the recording of the webinar available for download by clicking here.  The description of our session is listed bel0w.

Brace yourself, employers. The EEOC has been busy crafting new guidance that will affect the way you use criminal history in employment. On Wednesday, April 25th, the EEOC voted to approve the new Enforcement Guidance on the use of criminal records in employment, which will go into effect immediately. Changes are here!

Join EmployeeScreenIQ’s Angela Bosworth, JD and Nick Fishman for this special call-in update to review the changes to the guidance and understand what itmeans for you and your organization. Topics covered include: Topics covered include:

  • Comparison of the new guidance to the prior guidance
  • Bright line tests and limitations on number of years reviewed
  • State law issues and mandatory criminal checks
  • Open and pending cases
  • Rehabilitation and recidivism
  • Relevancy of information, job relatedness and best practices

Download the Webinar Recording

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As detailed in our blog post yesterday, we are highly disappointed with the new EEOC guidelines on criminal background checks and the burden they will place on employers going forward.  The outcome leaves employers with vague direction and no real road-map for compliance, while limiting their ability to protect their employees, their customers and their businesses.  If anything, it just exposes them to further litigation from the EEOC and private litigants.

I think EEOC Commissioner Constance Barker captured the essence of our grievances with the EEOC’s actions in her dissenting opinion which included the following:  “My concern for this Commission is how this Guidance will be received by the courts.  To the extent that we have re-written Title VII, the courts will NOT give it deference.  That saddens me because this Commission does not need to be embarrassed again by the courts.”

Check out this excerpt from her response to the new guidelines. This is well-worth the read.

Constance Barker

Comments to the Commission

April 25, 2012


I object to – and will vote against – the proposed new Guidance on Criminal Background Checks for 4 fundamental reasons:

First and foremost – I object to the utter and blatant lack of  transparency in the approval process.  The proposed revision before us today represents a major shift in the advice we have given the American public for the last 22 years.  Yet, we are about to approve this dramatic shift in our interpretation of the rights of job applicants and the obligations of America’s businesses under Title VII without ever circulating it to the American public for review and discussion. There is absolutely no justification for totally excluding the American people from this process or for this blatant failure to be transparent in how we conduct our business. I am devoted to the issue of civil rights and to the work of this Commission, but if we vote to approve this Guidance today, how can we expect the American people to have confidence that this agency operates openly  and with full transparency?  We are public servants.  We work for the American people.  What could possibly justify keeping them from knowing what is in this document before we approve it?

This particular proposed new Guidance – which in reality is a kind of regulation -  has tremendous implications for Americans.  It is exactly the type of policy shift that we should share with the American people — ask them to take a look, tell us what they think — have we forgotten anything — have we explained things well or is it confusing — and most importantly — how will this impact you.   But we didn’t do that.  Instead, the document was rapidly brought to a vote without the American people ever having a chance to see what is in it.  That is just plain wrong.

There are people in the Commission Room  today and throughout America who have considerable expertise in the subject the Guidance addresses, yet we are about to give final approval to this draft without ever letting any of these experts or the public at large see a single word that it contains.  And, we are approving it without even bothering to  submit it to OMB for their expert review.

That begs the question — why?  Why don’t we want America to see what’s in this document before we make it final? We should have spent months reviewing and discussing this with the public as we have other regulatory and sub-regulatory documents.  Yes, the Commission did have a meeting on background checks and did hear from stakeholders on the general subject of the pros and cons of conducting criminal background searches but seeking general input is a far cry from sharing what is in the actual proposed revised Guidance.  As soon as a revised Guidance was drafted, the public was shut out.

Here is my second concern:  it is my understanding that the Senate Appropriations Committee, Subcommittee on Commerce, Justice & Science  — the  committee that determines our funding year to year — under the direction of Chairman, Sen. Barbara Mikulski and ranking member, Sen. Kay Bailey Hutchinson, in the Report attached to the Appropriations Bill, specifically addressed their concerns about the haste with which this Commission was proposing to approve changes to the current Criminal Background Checks Guidance and specifically instructed the Commission to (a) engage stakeholders in discussion about the intended changes to the criminal background checks guidance and (b) circulate any proposed changes to the Guidance for public input for at least 6 months before bringing it  before the Commission for a vote.  When the Senate Appropriations Committee - the Committee that controls our funding – attaches to the bill that will determine our funding – specific instructions to hold off taking any action on this revised Guidance until we have circulated a copy to the public for input for at least 6 months — it seems to me we should  take that seriously.  So, why is this even on the agenda today?  Are we seriously going to just ignore this directive from the Senate Committee that decides our funding?

Especially when – and here’s the irony – there is absolutely no need to take action on this today or anytime in the immediate future.   What is the big rush to approve this Guidance?  What would justify ignoring a Senate Appropriations directive and ignoring our obligation to be transparent with the American people? There have been no changes in Title VII  – no new Supreme Court decisions that would compel a single change to our current guidance.  In contrast – our Guidance on the use of arbitration agreements in employment contracts has been out-of-date and a misstatement of the law since the first Supreme Court decision on that subject in 1991.   As far as I know, there’s no effort being made to revise that Guidance.

Thirdly – I object to the guidance because it so obviously exceeds our authority as a regulatory commission.  We are an enforcement agency.  We have the authority to issue, amend or rescind suitable procedural regulations.  We have no authority to make substantive changes in the law by issuing Guidances that go beyond what is contained in the statutes as interpreted by the courts.  Our job is to follow Congressional intent and court interpretation — not make new law.  No matter how well intentioned we may be — no matter how much a change in the law may be warranted — we simply lack the authority to make those changes through the issuance of Guidances.  It is Congress’ job — not ours — to weigh the pros and cons of proposed new legislation and approve or disapprove it.   We are not Congress. We are not part of the legislative branch.  And,  it is the job of  the courts to interpret the laws that Congress passes.  We are not the courts. We are not part of the judicial branch.  Our job is to explain what is already the law — not to expand it.    No matter how much some of us may want Title VII to provide additional protections we cannot use our authority to issue guidances, to create new rights or protections that Title VII does not provide.  If we think Title VII should be expanded, we should make our concerns known to Congress — not take it upon ourselves to do Congress’ job.

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Please note that this post was written by Angela Bosworth

It’s here!  The much anticipated EEOC guidance on the use of criminal records in employment was issued today, setting off a flurry of interpretations, complete with webinar invitations and blog posts. Not to be outdone, here’s our take on the matter.

By way of introduction, the road to new guidance was paved with protest, controversy and political horse-trading.  The EEOC has long maintained that the use of credit and criminal history in hiring can lead to “disparate impact” discrimination.  Disparate impact claims rely on statistical information to prove that use of criminal history and credit information has an unintended discriminatory effect on minorities. Studies that show a higher rate of arrests for blacks and Hispanics are often cited in disparate impact cases based on criminal history. While an increasing number of employers are seeking background checks out of security concerns, at the same time, more and more people are released every year from US prisons and jails. The growing ex-offender population, coupled with the economic climate and high unemployment, creates the perfect storm for disparate impact claims.

New criminal history guidance supports the Commission’s commitment to put an end to systemic discrimination and the push to help ex-cons get back to work.  In the past year, the EEOC has filed a record number of class action lawsuits alleging that employer’s use of credit and criminal history amounts to discrimination against blacks and Hispanics.  Pepsi recently paid a very well publicized 3.13 million dollars to settle a class action suit brought by the EEOC.

The push for new guidance is rumored to have been initiated by Obama-appointee and Chair Jackie Barrien, and was pushed to a vote this month due to the unexpected announcement from Democratic Commissioner Stuart J. Ishimaru that he would not finish his term. When he leaves at the end of April, Democrats lose their majority on the panel, and the chance of issuing this kind of guidance is slim. And because of the backlash the Obama administration has already encountered for recess appointments, the seat will likely remain vacant for the remainder of the year.

So without public comment or review, employers have been handed a new guidance to address using criminal history.  So what exactly is guidance, anyhow, and is it really just guidance?

Yes and no.  Technically speaking, the EEOC guidance is not binding on courts and carries no “official” legal weight. In practice, however, courts rely heavily on agency policy statements and the EEOC guidance in particular.  Employers understand and treat it like de facto legislation—Failure to heed the guidance may land you on the losing end of a class action suit in Federal Court.

The old guidance was issued in 1987 and recommended that before using criminal history information, employers had to take into consideration the following to demonstrate business necessity:

• the nature and gravity of the offense or offenses;

• the time that has passed since the conviction and/or completion of the sentence; and

• the nature of the job held or sought.

1987 EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

The EEOC also issued a 1990 policy statement on employers’ use of arrest records. Under that policy statement, employers have to consider the following before using arrest records to make an employment decision:

(i) the likelihood that the individual engaged in the conduct arrested for; and

(ii) job relatedness.

1990 EEOC Policy Statement on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

Blanket exclusions of individuals with criminal records have always been suspect, and the use of arrest records has historically been strongly discouraged.

The new guidance supersedes the old policy statements, but incorporates the guidelines. It is heavy on background information, case studies and examples. It is sprinkled with “best practices” with a healthy dose of footnotes. The major game changer is a new requirement for an employer’s defense: Individualized Assessment.

In summary:

  • Job relatedness and business necessity remain the legal standard for an employer’s defense. Two times when this standard is met are defined:
    • “The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); OR”
    • “The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, the nature of the job (the Greene factors). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”
    • “Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”
    • Compliance with Federal law/mandate that conflicts with Title VII is a defense.
    • State and local laws are pre-empted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII

Other notables:

  • It’s looong. 52 pages long, to be exact. 26 are guidance, the remainder is endnotes.
  • The difference between arrest and conviction records is discussed at length.
  • No more enforcement language. It is geared solely to employers.
  • No prohibition on open/pending cases. While arrest records are inherently suspect in terms of disparate impact discrimination, on an individual basis consideration of an open/pending arrest is still allowed.
  • Individualized assessment is loosely defined as follows: an employer informs an individual that he may be excluded from a job because of past criminal conduct, provides an opportunity for the individual to demonstrate that the exclusion does not properly apply to him; and considers the individual’s additional information should change the decision (looking to job relatedness and business necessity.

The Individualized Assessment section of the document lists “relevant” evidence that an employer should consider.  This is a MUCH more extensive list than in prior statements.  The list includes facts or circumstances surrounding the offense, the number of convictions, the age at the time of the conviction/release from prison, evidence of no related incidents, rehabilitation, employment or character references, fitness for the position, and bonding.

If the individual does not respond to an employer’s request for additional information, the employer can make the decision without the additional information.  How long or under what circumstances an employer must wait is not clear.

The guidance gives many examples in an attempt to clarify when and what an employer can consider.  We will be providing a more detailed overview of the ways to establish job relatedness and business necessity as we review the Guidance in more detail.

The last portion of the Guidance is Titled “Best Practices”, and it digests the EEOC’s recommendations to employers who plan to use criminal records.  Besides the expected recommendations to train personnel on Title VII, develop policies and procedures, conduct individualized assessments, keep good records and notes, and maintain confidentiality, the Commission recommends that employers limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.  While this is not as specific as a “ban the box” limitation, it does suggest that employers need to review their background screening program to make sure they are asking for defensible information.

The Commission approved the guidance by a vote of 4-1, with Republican Constance Barker providing the lone no vote.

Click here to read EEOC press release

Click her to read the actual guidance

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